Tuesday, February 28, 2012

The First Amendment to the United States Constitution provides that "Congress shall make no law … abridging the freedom of speech…" In January 2010, The United States Supreme Court issued a ruling in Citizen’s United v. Federal Election Commission which held that the sweeping language of the freedom of speech section of the First Amendment required striking down a federal statute that prohibited any for profit or non-profit corporation and any union from using money to pay for "speech that is an ‘electioneering communication’ or for speech that expressly advocates the election or defeat of a candidate." The Court held that such prohibition amounted to a violation of the First Amendment right to free speech, and noted that the Supreme Court had traditionally held that prohibitions against political speech must meet a "strict scrutiny" test if they were to pass constitutional muster. The outright ban on political speech, on the pain of criminal penalties, outlined in the statute under review, did not pass the strict scrutiny test.

Justice Kennedy, writing for the majority, stated:

"Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people…The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution".

The decision followed a long line of cases which have held that corporations have certain constitutional rights, including the right to free speech.

Indeed, it is imperative that corporations have protections under our constitution, for stripping corporations of their rights under the rule of law would strip away individuals’ rights as well. The constitutional amendment proposed by Sen. Bernie Sanders demonstrates the danger to our constitutional democracy of taking away rights from corporations or other private entities.

Sen. Bernie Sanders, outraged by the Citizens United decision to protect free speech rights of certain entities, has proposed a constitutional amendment that not only takes away corporations and other "private entities" free speech rights, but all other constitutional rights as well.

Section one of the proposed Sanders Amendment states:

"The rights protected by the United States Constitution are the rights of natural persons and do not extend to for profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States or any foreign state."

Sanders’ amendment, then, not only applies to corporations, but to "private entities" established for business purposes or to promote business interests. The dictionary definition of business is, among other things, "an occupation, profession or trade". "Private entities" would include sole proprietorships, cooperatives, associations, and partnerships. Credit unions, auto repair shops, food coops, farms, realtors, accounting firms, street vendors, and home day care operators would all be covered by this amendment. A "private entity" that "promotes business interests" would include Northeast Kingdom Chamber of Commerce, groups like St. Johnsbury Rotary Club and St. Johnsbury Business and Professional Women’s Club, and trade organizations like Vermont Businesses for Social Responsibility.

The Sanders’ Amendment extinguishes the rule of law for anyone engaged in an occupation, profession or trade by declaring that all business entities and those promoting business have no rights whatsoever under the U.S. Constitution.

Here are some of the constitutional protections that would be lost under the Sanders Amendment:

The constitution’s First Amendment right of free speech would not apply to any business entity. Any business entities from the local Chamber of Commerce to the professional organizations to the Northeast Organic Farming Association could be muzzled by government officials.

The First Amendment right to assembly would not apply to business entities. Business and trade conventions could be prohibited under the law. Organizations like the local retail association or Rotary Club could be banned from meeting.

Article 1, Section 9 of the U.S. Constitution prohibits bills of attainder--laws that target certain individuals--and ex post facto laws criminalizing conduct lawful when committed. That section would not apply to business entities. Congress, state legislatures and local select boards could pass laws targeting any individual business they chose, and criminalize conduct of a business after the fact.

Article I, Section 10 of the Constitution prohibits states from impairing contracts. This protection would no longer be afforded to business entities. State legislatures could void any business contract, giving favors to its business friends and punishing those companies which were out of favor with the politicians.

Business entities would not be entitled to Constitutional due process under the Fifth and Fourteenth Amendments if the Sanders Amendment was added to the constitution. Business entities could have their property confiscated and their contracts voided, and they would have no legal recourse. Indeed, the Sanders Amendment would arguably deny business entities and those promoting business the right to access to courts, if a federal or state legislature so chose.

Constitutional equal protection of the laws would not apply to business entities. If a government official did not like a local realtor or book store, he could shut the business down for no reason; or a legislature could declare only certain favored business entities could do business in their state. There would be no recourse.

The far-reaching language of the Sanders Amendment would abrogate the rule of law for businesses of any type or size in this country. Its unlimited scope would encourage local, state and federal governments to wield the power it provides to them. The expansive scope of the amendment would preclude any narrowing interpretation by the courts.

If the Sanders Amendment passed, we would have a fundamentally different country where people who engage in business would be at the mercy of politicians who could give favors or take away privileges with impunity.

Private entities must enjoy constitutional rights if the rule of law enshrined in our constitution is to have any meaning.

The Bayley Hazen military road, a brain child of Gen. George Washington, runs through our remote Northeast Kingdom town on the way to Canada. Charlie and Deb Bucknam, the doyen and doyenne of the clan, and their daughters and sons in law Jen and Andy Black, and Serena and Paul Varley, are authors. We have a forward looking conservative perspective which we hope you enjoy.

About Us

The Bayley Hazen military road, a brain child of Gen. George Washington, runs through our remote Northeast Kingdom town on the way to Canada. Charlie and Deb Bucknam, the doyen and doyenne of the clan, and their daughters and sons in law Jen and Andy Black, and Serena and Paul Varley, are authors. We have a forward looking conservative perspective which we hope you enjoy.